756
Souter, J., concurring in judgment
of substantive due process and sometimes as unenumerated rights, in view of the breadth and indeterminacy of the "due process" serving as the claim's textual basis. The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action. Although this practice has neither rested on any single textual basis nor expressed a consistent theory (or, before Poe v. Ullman, a much articulated one), a brief overview of its history is instructive on two counts. The persistence of substantive due process in our cases points to the legitimacy of the modern justification for such judicial review found in Justice Harlan's dissent in Poe,4 on which I will dwell further on, while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim.
Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, re-4 The status of the Harlan dissent in Poe v. Ullman, 367 U. S. 497 (1961), is shown by the Court's adoption of its result in Griswold v. Connecticut, 381 U. S. 479 (1965), and by the Court's acknowledgment of its status and adoption of its reasoning in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 848-849 (1992). See also Youngberg v. Romeo, 457 U. S. 307, 320 (1982) (citing Justice Harlan's Poe dissent as authority for the requirement that this Court balance "the liberty of the individual" and "the demands of an organized society"); Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984); Moore v. East Cleveland, 431 U. S. 494, 500-506, and n. 12 (1977) (plurality opinion) (opinion for four Justices treating Justice Harlan's Poe dissent as a central explication of the methodology of judicial review under the Due Process Clause).
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